Lectures 3-8

Connection between Law and Morality

Origins of the ‘Law and Morality’ debate

 The debate over whether you must do certain things because the law tells you to; or
whether you must do them because they are morally right.

Early debates concerned very important questions about the relationship between law,
morality and authority etc. This turned into conflicts, such as the Civil War, so since them,
theorist have been trying to solve the problems. There has been a shift in the thinking about
how those how govern should govern.

Early 17th Century

- James 1 came to the throne in a time of intense conflict
- He tried to solve the problem of moral conflict by writing a book on it
- He suggested that the sources of moral rules are:
1. Revelation (word of God, from the Bible etc)
2. Judicial (practised for a long time e.g. Common Law)
3. Reason (natural law, are universal and derived independently from states etc
(Aquinas). We reflect on human nature to get laws)

Conflict over Rules

1. Through the interpretation of rules e.g. Bible is ‘flexible’
2. Through norms from different sources  each society has different ideas about what
it right and wrong
3. Who has the authority to determine what morality required?  leaders of each
religion/ government/us? This is the most important question!

James I tried to solve the problem by enforcing ‘sovereign absolutism’, whereby everyone
had to respect his personal opinion i.e. his command became law. This meant people had to
give up the right to judge for themselves, which created conflict e.g. Guy Fawkes’ night of
treason

Coke disagreed with this and said that Kings should be controlled by the Common Law, like
everyone else. 50 years later, Parliament said they should be in charge, as they are the
ones who represent people  the most democratic solution.

Concept of Law
= originally a debate over the problem of authority, but it now comes down to 2 main
positions:
1. Legal Positivism
There is no necessary connection between law & morality (separation), and
sometimes we just have to do things. What is/isn’t law is defined by social facts and
norms (sources) = stable system where you always follow law made by authority.

2. Natural Law
Law & morality are connected. Anything immoral is not law = unstable, as you can
always question decisions taken by authority.
 Legal Positivism

Hobbes (substantive LP – “law as it ought to be”)

=leadinvg normative debate stance that we ought to surrender to the will of the sovereign,
whether or not we think it is just or not  otherwise, there will be anarchy.

 Wrote a book which is the strong positivism to emerge to date: the ‘Leviathan’
 Argues for an absolutist state like James I: who said there are three sources of law:
judicial...
 His book was very powerful and couldn’t be overcome, which is how the state should
be  make a law and enforce it strictly and absolutely
 He was very scared of conflict, and wanted strict rules enforced to eliminate it

Components of his Legal Philosophy

1. Law of Nature = it is rational that everyone wants to protect themselves, and allows
for religious diversity

2. State of Nature = without a government or authority, there is war and everyone has
enemies. We need rules to know how to act.

3. Sovereign = we give up our individual rights when we surrender to authority, but

that’s just the way it is  civil incorporation, where we are an incorporated body
beneath the King

Problem: What happens when the sovereign asks you to do something bad and contrary to
the reason for following him, and contrary to your self-interest e.g. suicide?

In 1960, John Locke published “Two Treaties on Government” contrary to Hobbes’ work and
ideas
 We have natural rights and are under no obligation to do anything or obey rules when
they are contravened. We could potentially overthrow the sovereign if he forces us to
do something unnatural.

This opened the debate between natural law and legal positivism.
Bentham (Command Theory)
= utilitarian: ‘greatest good for the greatest number of people’
= positivist, for the same reason as James I

He tried to offer a rational moral theory to legal philosophy which was not based on the
divine. It overrules Hobbes’ idea, but works in the same way.

Components of his Concept of Law (by Postema, 1986)

1. Law is a set of commands (an order back by a threat)

2. Commands are issued by the sovereign (who is the political superior that enforces
the commands)

3. These commands are observed by the bulk of the population

Bentham says that law is law because it is the will of the sovereign, not because it is just.
Positivism and utilitarianism fit together because, without law, people will conflict with each
other
 Law as a whole coordinates social interaction and allows people to do what they
want, without creating anarchy. He thinks that we have an obligation to do things, as
part of utility, which we don’t always believe are right.

He was critical of Natural and Common law, as he claimed that we never knew what was
rights and wrong (“dog law”). The modern ‘command theory’ made things a lot clearer, so
Bentham thought we should follow that.

This was a direct attack on previous ideas and was done with the intention of clarifying the
rules which society should follow  could be considered revolutionary?

The link between James I, Hobbes and Bentham is that they all agree we need a clear set of
rules!

Hobbes = normative/substantive LP  law as it ought to be

Bentham = Command Theory?  in between the 2

Austin = methodological LP  law as it is

Some people: Thought methodological positivism was the basis of his concept of law

Postema: Thought Bentham was much closer to Hobbes’ view, whereby positivism was
about doing what the sovereign says, regardless of your own moral views = a better
interpretation of Bentham’s view!
Austin
= argued for a concept of law very like Bentham’s “Command Theory” BUT took it as a
scientific truth It wasn’t just for justification, but wanted to classify every concept we have
e.g. what is law, what is a rule etc  not normative! So it becomes v descriptive, as
expanding on command theory by defining everything!

“’Positive Law’ (or law ‘properly so called’) is the body of commands flowing from a political
sovereign which is habitually obeyed”.
Difference, is that we’re now in a democratic society when Austin is writing so he has shifted
from the concept of law because instead of the divine right of kings, we now have a
parliament and moves towards democracy.

Concept of Law
1. Law if a command  a type of imperative, which is a wish by you that I should
forebear from doing (as opposed to a command as backed by a sanction)

2. Sovereign can be anyone who issues laws and is a political superior  this person
has more coercive power than anyone else, and does not generally follow any other
political superior

3. The bulk of the population must follow the sovereign for it to be effective.

 This is very similar to Bentham’s 3 characteristics, and it is based on empirical things,

so it is still a Command Theory

Criticism
= normally that his concept of law does not reflect real life!

1. Where do we locate sovereignty within the UK? We are a democracy, so the

sovereign follows what we want. EU has supremacy over our sovereign.

2. We only really follow Criminal Law, not everything else, as we use our morals for a
lot of things.

3. Hart says Austin’s theory is unable to distinguish between legal obligations and what
we are obliged to do  there is a distinct difference between the two!

4. Kramer says the difference is that:

- Legal obligations are directed at a specific person/class or people at any one time
- Commands of the sovereign are strictly enforced to make people obey in future
- We can call immoral systems legal obligations because there are commands which
are strictly enforced to ensure compliance

5. Hart says you can’t justify law by simply observing it – instead, you need to
understand the people within it and what they do i.e. you must include the internal
point of view too. Most understand why participants of a legal system think they have
some sort of obligation to obey rules = the “reductionist theory”.
 6. Austin’s theory also doesn’t take on board the idea of customs, which are different in
every culture and according to different people.

Hart
Far more sociological than kelsen is an is man rather than ought.
When trying to tackle ‘what is law’ he doesn’t really address this. When one question is
asked we are actually seeking the answer to another question – so he says we ask what is
law because we actually want another question answered – hence he does not see the need
to answer this as he believes we can see what the law is and what we really want to know is
why do we see law as law.
Internal point of law, how judges act, they will act in a way without needing it stated as they
will understand this internal view.
Shift from substantive to methodological – not testing positivism on content he is just moving
away and being descriptive.
You just have to accept we have law, and he attempts to explain that
b= a “soft” positivist  first work of sustained legal philosophy since Bentham
= his theory builds on criticism of Austin’s work
= thinks that the law should be conceptualised from the internal participant point of view
primarily, but be understand by all involved in it.

He specifically tries to show the point of view of the legal official and why he feels obligated
to act in certain ways
 Hermeneutic approach = could be said to be normative
 Is trying to complain the legal official’s commitment to law, and why they think it’s
obligatory to those involved in it
 What are the commitments?

Hart thought that the best law was a combination of primary and secondary rules:
 Primary rules = basic prohibitions and rules conferring certain rights, permissions
etc. These would be deficient on their own, as there would be no scope for change,
growth etc.
 Secondary rules = rules for change, adjudication and recognition

The Rule of Recognition (no way of validating this, must just believe that is is)
This is what creates laws, and it is what makes Hart’s view positivist. It says that:
- Law is not necessarily connected to morality
- Law is a matter of social fact and has a social source  doesn’t come from nowhere!
- R of R is a way of identifying laws, so it is about how conventions are made and
therefore the officials see law from Hart’s perspective
- Is also a way of remedying the defect of uncertainty in relation to how the Primary
rules came about

The crucial part of Hart’s argument is about why people feel obliged by the law, and also that
the legal official must accept the theory about the union of the primary and secondary rules
 Hart explains this by saying that the legal official, as part of the legal system, must
know how the law works – he is very intuitive, but there are also conventions to follow
Within the legal system, legal officials create critically based points of view and attitudes 
they criticize each other to make sure all the rules are clearly defined

Marmor = Hart’s concept of law is like a game, as there are many rules etc to follow

Minimum Content of Natural Law

1. Law can have a contingent relationship with morality
 ‘those which are immoral cannot be part of law’ will vary from system to system

2. There is a minimum content of Natural Law (land crab quote)

 We do not have unlimited resources and knowledge and we are not impenetrable,
therefore we need basic moral rules enshrined in our legal system to guide us
Kramer = law is morally worthwhile in a minimal sense
Bix = he is simply stating the facts, not giving anything new or philosophical

Kelsen
= most famous and most influential legal positivist from a traditional European background
Is an ought

He was greatly influenced by Kant, who tried to create a sense of linking ourselves to the
external world. Kelsen wants us to make sense of different legal systems, as compared to
others, as clear and coherent so we can understand it

Normally, theorists believe that either:

Law is connected Law is connected

with FACT OR with MORALITY
(Positive law) (Natural Law)

= They are mutually exclusive, but also totally inclusive

HOWEVER, Kelsen looks at it from a completely different angle, based on law being
connected with norms. He says you can’t look to legal officials for a system of rules.

Pure theory of law = free from moral considerations and facts

 He tries to separate ‘law’ from both, and conceptualise it independently = very odd!

Concept of Law
1. Law is a normative order, just full of norms which are directions to do something,
NOT facts
2. Law is a coercive order with sanctions, as opposed to morality which can’t be
enforced
3. Law can only be valid or invalid, NOT right or wrong

Our system of law is like a triangle:

 Basic, or grundnorm, is at the top, which
is what the whole system is based upon.
 The norms become more and more specific
as you go down the pyramid

 The enforced norms are at the bottom e.g.

police powers to arrest etc

This says we can only make sense of a legal system if we assume the existence of a basic
norm, otherwise we have no foundations or grounds to unify it. It is irrelevant if it does or
doesn’t exist, but we must assume it. We know about it because we see it working in
practice.

N.B. The similarity between the Basic Norm and the Rule of Recognition as a way of
validating a system of law. BUT also remember that the grundnorm is just a conceptual, pre-
supposed idea, whereas the R of R is definitely real.

Natural Law

Natural Law Theory

= a rule can only be correctly identified as a law if there is an underlying conception of
morality  law and morality are connected

This is a pre-modern theory, which is characterised by natural law within legal philosophy
e.g. Artistotle. There has been a resurgence in this field since WWII.

Weak Natural Law = positive law, but only means anything is only once related in that way
Strong Natural Law = immoral law e.g. Nazis is NOT law

Gustav Radbruch
He was a positivist prior to WWII, but began to change his mind after viewing the Nazi way
of life. He thought it was awful that positivist lawyers could follow awful rules, just because it
was the law.

He favoured the Disavowal Formula, where legislators have chosen to ignore or behave in
contrast to morality. It is very difficult to say when someone has chosen to do this
deliberately.

Radbruch said law is still law because of:

- Certainty
- Clarity
- Efficiency  people follow laws and know what they are
- Relativism  we elect a legislature
- Democracy  laws are valid if they are from a proper legal source
- Candor  once a law is made, you can’t go back on it as it is punishing people
without due breach

BUT Hart and Fuller disagree with the Candor argument, because it goes against the degree
of Retroactivity that they both want within the legal system.
Robert Alexy
Followed Radbruch’s Natural Law Theory and made it more substantial.

Central Concepts
- Moral connectivity thesis is crucial
- Natural lawyers are either:

1. Substantive:
The morality of law comes from its content e.g. the Law must be consistent with
Human Rights, or it isn’t a proper law

2. Procedural
The morality of law comes from the way in which the law is made e.g. the Law must
be publicised. In other words, it can’t be secret and the procedure must show an
element of morality i.e. it must be made in a democratic way
Finnis
= a substantial natural lawyer, and follows Aquinas’ views on law and morality.
“In order to effectively solve coordination problems the law must be clearly and certainly
identified by legal officials.”

In order to preserve and pursue self evident principles we need structure as there is a
coordination problem we need law that is clear and identifiable.” So in order to have natural
law we need positivism to realise the natural laws and prioritise.

He believes that the Natural Law Theory is good because:

1. Moral convictions are embedded within the legal system
2. Law must be understood as a teleological concept
 law has a particular purpose/function so Natural Law gives justification for it
3. Law is not an object and cannot be defined perfectly
 It is a social process, which has a goal of justice

Structure of Natural Law and Natural Rights

1. Basic Goods

2. Requirements of Practical Reasonableness

3. Community and the Common Good

4. Concept of Law

1. Route of Morality of the 7 basic rules:

Life, Play, Aesthetic Experience, Religion, Knowledge, Practical Reasonableness and
Friendship = the basic values which underpin all moral values, and thinks they are truly good
in any ethical debate.
 To deny these goods is self-contradictory e.g. to deny knowledge means you must have
knowledge!
He thinks the ethical debate has to start somewhere, and it may as well be from here and it
is irreducible. All of these basic rules are equal, and not measurable against anything else.

2. Requirements of Practical Reasonableness

There are 9, including adopting a coherent life plan, having no arbitrary preference between
the basic goods, and following one’s conscience.
 We need these to get from the basic goods to the real system of law, and can figure out
what to using them.

3. Community and Common Goods

What one ought to do now, and what the community to do. Finnis believes that communities
are routed in friendship and respect for one another’s well-being.

4. Legal Theory
Justice is key to the perfect community

Law is 1. Concerned with rules

2. Concerned with regularity of rules
3. Buttressed by sanctions in accordance with rules
4. Aimed to provide a system her we can interact with each other
5. Directed towards resolving any community coordination problems for common good
Simmons
Sees law as a moral idea, and as an archetype. He believes that you must have general
knowledge in order to define things; and can’t go too far beyond the scope of these
definitions.

Finnis rejects ‘lex invista non est lex’ (immoral laws can’t be laws)
 Says that immoral laws can still be laws, but they just deviate from the usual
archetype

Reasons to be obliged to comply with Immoral Laws

1. Moral
2. Empirical i.e. you will be punished if you don’t
3. Intra-Systemic i.e. you must comply with legal officials, who give law from
institutions
4. Collateral i.e. if you don’t comply, we can’t be said to live in a true legal system

Why justify obeying Immoral Laws?

Law is so immoral that you don’t have to obey it only when the system has not been
reformed to avoid unjust outcomes i.e. we need strong powers of government and
parliament review.

In his essay “On the Incoherence of Legal Positivism”, he demonstrates that he appreciates
elements of positivism, whilst denying its overall validity, as the binding character of law
cannot be explained by positivism.

Criticism
Finnis confuses ‘is’ with ‘ought’  he argues that the basic goods are pre-supposed and that
it is Practical Reasonableness that tells us what we ought to do to achieve this. It is not him,
so why should we believe these goods in the first place?!

Basic goods are not beyond question, as Finnis thinks they are. He thinks that people who
assume no material belongings are unreasonable! But this is just an assertion, not the truth.
He gives no evidence for this.

Modern legal positivists believe that the ‘basic goods’ are a mistake, and that there is not just
one moral code, but a combination of many different ones from different cultures.

He suggests that we should strive for a ‘community’ aspect, but why? Is it not more
important that we focus on the individual?

Fuller
= procedural natural lawyer, writing mostly in the 1960s
= thinks it is about how laws are made, not about their content
= there IS some minimum content of life which is pre-supposed

Criticism of Positivism
1. Law can only be explained as a purposive activity, with an implied moral goal
2. Legal positivism seems to believe that the existence of law is a matter of moral
indifference
Fuller thinks morality is irrelevant and has a goal
3. Legal positivism is a one-way projection of authority
 But we have to obey it!

“Law is an enterprise of subjecting human conduct to a governance of rules”

I.e. it is a social process with this moral goal

Inner Morality of Law

There are 8 components (desiderata) needed to effectively govern human behaviour by
rules. These are NOT duties, but moral values we should follow! The rules must be:
1. General 5. Contradictory
2. Promulgated (written down and known) 6. Possible to obey
3. Not retroactive 7. Remain relatively constant through time
4. Understandable 8. Congruous with rules
announced/applied

 If these desiderata are not adhered to then they are not proper rules!
Fuller thinks we need a moral system of law for it to be significant
Criticism by Raz of this idea:
It is about how you effectively get people to do what you want them to do i.e. ineffectiveness
does not necessarily mean the system is bad, so an ineffective system is still a legal system

Hart
Says people can still be subjected to substantively unjust laws, even if they are following
laws of morality
BUT
Fuller
Says these unjust laws cannot rule people in the long run, and wont’ govern human
behaviour. In order to achieve evil through laws, you must go against morality OR in order to
achieve injustice, you must be secretive, as it is not an easy thing to do

Positivism is a one-way projection of authority, whereby officials just give orders to people on
what they want them to do...
BUT
Fuller says it is a reciprocal agreement i.e. there is an implicit agreement within legal system,
which says that citizens will obey IF they officials comply with inner morality.

Law provides the system of how we interact with each other  is reciprocal and NOT
about effectiveness.